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PETITIONER: GANPAT

       Vs.

RESPONDENT: RETURNING OFFICER & ORS.

DATE OF JUDGMENT04/12/1974

BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. SARKARIA, RANJIT SINGH

CITATION:  1975 AIR  420            1975 SCR  (2) 923  1975 SCC  (1) 589  CITATOR INFO :  F          1976 SC 939  (11)  R          1984 SC 600  (29)

ACT: Election-Member of Scheduled Caste-Allegation that  returned candidate became a convert to Buddhism-proof.

HEADNOTE: In  the election to the State Legislative Assembly  to  fill Lip a seat reserved for members of the scheduled castes from Nagpur,  the  second respondent was declared  elected.   The appellant  challenged  the election. on  the  ground,  inter ’Ilia,  that  the  second respondent ceased to  be  a  Hindu having been converted to Buddhism.  The High Court dismissed the election petition. Dismissing the appeal to this Court, HELD : (1) The second respondent was a well known Doctor  in Nagpur,  the appellant belonged to Nagpur and they  belonged to  scheduled castes before the second respondent’s  alleged conversion  to  Buddhism.  And yet, the  appellant  has  not given  the date, the place or the circumstances under  which the second respondent became a convert to Buddhism.  Nor did the  appellant  object at the time of the  scrutiny  of  the nomination  papers.  that the second respondent  was  not  a member of the scheduled caste. [925 G-926 B, F-G] (2)  The second respondent was born a Hindu and was  married according  to  Hindu  rites.   He  went  to  England  on   a Government scholarship given to members of scheduled  castes to study Medicine.  If he was not a member of a  scheduled caste  he had run a risk of prosecution when he  so  claimed for getting the scholarship, and also ran a similar risk for perjury in the present case. [926 G-H] (3)  Merely because the nieces of the second respondent were married  according  to Buddhist rites,  the  invitation  for their  marriage  was  in  the  Buddhist  form,  the   second respondent’s name was printed as one of those joining in the invitation, at the time of the marriage the pictures of  Dr. Ambedkar and the Buddha were garlanded, and a Buddhist Bhiku officiated  at the marriage, It could not be held  that  the second respondent was a Buddhist. [927 A-D, E. G] (a)  The evidence shows that there is very little difference between  a  wedding  according to  Buddhist  rites  and  one

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according  to Hindu rites.  Moreover, Buddhist’s  rites  are followed even where one of the parties to the marriage is  a non-Buddhist,  and  there  is no  evidence  that  the  Hindu partner  does not continue to profess  Hinduism  thereafter. [927 D-E, 928 D-E] (b)  The   names  of  brothers  are  included   in   wedding invitations under the lead "With best compliments of",  very often without their permission. [927 B-C] (c)  The  picture of Dr. Ambedkar might have been  garlanded beCAUSE  he  was held in great veneration by  the  Scheduled castes.  Therefore, merely because of the garlanding and the Buddhist  Bhiku  officiating at the  marriage.  the  wedding could  not be considered to be according to Buddhist  rites. [928 A- B] (4)  When  one  is born a Hindu the fact that he goes  to  a Buddhist temple or a Church or Durga cannot be said to  show that  he  is  no more a Hindu and that he  had  changed  his religion. [929 C-D] (5)  Also,  from the fact that Dr. and Mrs. Ambedkar  and  a large  number of people openly got themselves  converted  to Buddhism  it  does not follow that all the  members  of  the scheduled castes followed in their foot steps. [929 B] (6)  Religion  is essentially a highly personal  matter  and Hinduism  is  so tolerant and Hindu religious  practices  so varied and eclectic that one would find it difficult to  say whether a person is practising or professing Hindu  religion or  not  In such a matter, the open assertion by  a  person, especially in 924 educated member of society. about the religion he  professes should  be  given considerable weight  over  the  interested testimony of others based upon stray instances. [929 C, 930 F-G]

JUDGMENT: CIVIL APPELLATE JURISDICTION :Civil Appeal No. 348 of 1973. Appeal from the judgment and order dated the 10th  November, 1972  of  the Bombay High Court (Nagpur Bench)  in  Election Petition No. 1 of 1972. L. M. Singhvi, M. C. Rajkarna,S. N. Ponikar, A. G.  Maneses, K.   J. John and J. B. Dadachanji, for the appellant. G.   L.  Sanghi, S. B. Wad, B. U. Wahano and Jayashree  Wad, for respondent No. 2. K.  L. Hathi and M. N. Shroff, for respondents Nos.  21  and 22. The Judgment of the Court was delivered by ALAGIRISWAMI,  J. In the election to the Maharashtra  Legis- lative  Assembly held in March 1972 to fill up a  seat  from the  North Nagpur constituency reserved for members  of  the Scheduled  Caste, the 2nd respondent was  declared  elected. The  appellant  filed an election petition  questioning  the election.   That petition having been dismissed by the  High Court of Bombay (Nagpur Bench) this appeal has been filed by the appellant. In  that  election  as  many  as  19  persons  filed   their nomination   papers.    Nine  of   them   withdrew   leaving respondents 2 to 10 and the appellant in the field.  One  of them  who withdrew was the 11th respondent, Ranjit  Mesbram, with  whom we will have to deal later.  It the election  the 2nd respondent obtained 22,993 votes, the appellant obtained 21,135  votes, the 6th respondent obtained 16,123 votes  and the 9th respondent 2,590 votes.  It is unnecessary to  refer to  the  other  respondents or the votes  obtained  by  them

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because the argument before this Court have been confined to respondents 2, 6 and 9. At many as 14 issues were framed for decision of which, as far as the arguments before this Court are  concerned, only issues 9 and 1 survive.  They  are  set out below :               "9. (a)    Was   the  notice   of   withdrawal               (document  No. 5) tendered by  the  respondent               No. 11 to the Returning officer a valid one ?               (b)   Did  the notice of withdrawal  (document               No.  6)  tendered by Shri S. P.  Ukey  in  the               prescribed  form cure the defect, if  any,  in               the notice of withdrawal (document No. 6)) ?               (c)   Can these notices be said to lie legally               tendered  as  required by section  37  of  the               Representation of the People Act, 1951 ?               (d)   If not, its effect ?               (e)   Has the acceptance of the withdrawal  of               the  respondent No. 11 materially changed  the               election results ?               925               10. (a)    Are the- respondents 2 and 4 to  IO               converts  to Buddhism and have  they  embraced               and professed Buddhism and ceased to be Hindus               ?               (b)   If so, were they eligible to contest the               election from the Reserve Constituency ?               (c)   If not eligible, what is the effect ?               (d)   Did  the candidature of  the  respondent               No.  6, if he was disqualified on  account  of               the conversion to Buddhism, materially  affect               and after the election results ?               (e)   What  is the effect of not  raising  the               objection   about  the  eligibility   of   the               candidate  at  the  time of  scrutiny  of  the               nominations ? It  may  be necessary to notice issue 13  also  because  the appellant had prayed not only for setting aside the election of  the  2nd  respondent but also  for  his  being  declared elected  from  the  constituency.  Issue 9  relates  to  the question  of withdrawal by Ranjit Meshram to whom  reference has already been made.  Issue 10 relates to the question as to  whether  respondents 2 and 4 to 10 could be said  to  be members  of  the Scheduled Castes so as to  be  eligible  to stand for election from this constituency.   Though  in  the petition the question was raised about respondents     2 and 4 to 10, even in the High Court only the question relating   to respondents  2, 6 and 9 was considered.  Before  this  Court Dr.  Singhvi  appearing for the appellant  concentrated  his atten tion  regarding  the case of respondents 2 and  6  and preferred to leave the case of respondent 9 alone.  This  is because  next  to  the  respondent  2  and  the   appellant, respondent 6 has got the largest number of votes.  Even  the question  regarding respondent 6 is only important from  the point  of  view of the prayer in the election  petition  for declaring  the  appellant elected after  setting  aside  the election  of the 2nd respondent.  If the 2nd  respondent  is found not to belong to a Scheduled Caste no further question will survive.  It is only if the 2nd respondent is found  to belong  to a  Scheduled Caste that  the  question  whether respondent 6 also is of is not a member of a Scheduled Caste and  the appellant could be declared elected would arise  at all.   We  shall first deal with issue 10  because  that  is concerned with the most important question. We  must  first  of  all  notice  the  fact  that  when  the nominations were scrutinized the appellant did not object to

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the  nomination  papers  of respondents 2,  6  and  9  being accepted  on  the ground that they were not members  of  the Scheduled  Castes.   Though legally there is no bar  to  the appellant  raising  that question in the  election  petition questioning   the  election  of  the  2nd   respondent   his allegation  that respondents 2, 6 and 9 are not  members  of the Scheduled Castes would be considerably weakened  because of his failure to object at the time of the scrutiny of  the nomination papers.  All the candidates belong to the  Nagpur City  and  all  of  them belong  to  the  Scheduled  Castes, ignoring  for  the present the question  whether  they  were Buddhists.  Respondents 2, 6 and 9 are not ordinary  members of the Scheduled Castes.  Res- 926 pondent  2  is  a  doctor  married  to  another  doctor  and practising in Nagpur City.  He sees 60 to 70 patients daily. Respondent  6 is in advocate and as is seen from the  result he  is popular enough to get 16,123 votes and his wife is  a doctor.   Respondent  9  is  also  a  doctor.   They   must, therefore, be well-known figures in Nagpur or at least among members of the Scheduled Castes.  The appellant should  cer- tainly have known them personally or at least heard of them. He  should  have  also heard whether  they  were  Hindus  or Buddhists.   He  must  have  known  about  their   political activity.  This is one point of view from which the evidence let in on behalf of the appellant should be considered. The  second  point is that the movement for members  of  the Scheduled  Castes becoming Buddhists in order to get out  of the  Hindu society, of which untouchability is an  important constituent,  seems to have been started by Dr. Ambedkar  in 1956  in  which  year  a large  number  of  members  of  the Scheduled  Castes,  including  Dr. Ambedkar  and  his  wife, publically  embraced  Buddhism.  There is a Bhiku  Niwas  in Nagpur  and  Buddhist  Vandana is held  every  Sunday.   The appellant could not have been unaware of all this.  All  the parties  are  persons  who must have been  born  many  years before  1956 and so they must have been formally  converted. There is no allegation and there is no evidence as to  when, where  and by whom respondents 2, 6 and 9 were converted  to Buddhism.  Thirdly,  the instances relied on were in the case  of  the 2nd respondent the part he played in the marriage of his two nieces,  Usha and Sushil, whose marriages are said  to  have been  celebrated  according to Buddhist rites.  He  is  also alleged  to have visited the Bhiku Niwas and taken  part  in Buddist   Vandana.   As  regards  the  6th  respondent   the instances  given are only that of his own marriage  and  the marriage of his sister Vimal, both of which are said to have been  performed according to Buddhist rites.   The  question regarding  the  namkaran ceremonies of the children  of  the respondents was not argued-. Fourthly,  we  have, got to consider this  question  in  the context  of  Indian  society  and  the  place  of  religious observance  in  so  far  as they  show  what  religion  they profess. Taking  first the case of the 2nd respondent, the date,  the place  or the circumstances under which he became a  convert to  Buddhism is not given in the election petition,  nor  is there  any allegation that he himself was married  according to the Buddhist rites.  He asserts that wife is a Hindu, his wife  is  a Hindu and they were married according  to  Hindu rites.   He is a medical graduate who went to England  on  a scholarship  provided by the Maharashtra Government  on  the ground that he was a member of the Scheduled Castes.  If  he was not a member of the Scheduled Castes he certainly ran  a

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serious  risk  in claiming to be a member of  the  Scheduled Castes  and getting a fairly valuable  scholarship  enabling him to go to England and there is an equal risk in declaring himself to be, a member of the Scheduled Castes even for the purpose of election if he were not one.  He further runs the risk  of being prosecuted for prejury in giving evidence  in the petition 927 claiming to be a member of the Scheduled Castes.  It has not been alleged that his marriage was according to the Buddhist rites  and we must, therefore, take his assertion  that  his marriage was according to Hindu form at its face value.   As regards  his part in the marriage of his nieces he  says  he was standing outside and receiving guests while the marriage ceremonies  went  on  inside.  The invitation  card  is,  of course,  in  the form which one would expect a  Buddhist  to issue.  The marriage was of the 2nd respondent’s nieces, not of  his own daughters and the invitation was issued  by  his brother.  The 2nd respondent’s name is printed there as  one of  those joining in the invitation.  But it-is  well  known that  the names of brothers are usually included in  wedding invitations  under the head "with the best compliments  of". People  do not take the permission of those whose names  are included in the wedding invitations under that category  and it  is  but  natural that the father  of  the  bride  should include  the  name of his brother who as a doctor  would  be considered  to  be a prominent member of  the  community  to which  the  parties belonged.  It is true  that  the  second respondent has said that his brother was also a Hindu but on that  ground the 2nd respondent’s claim that he is  a  Hindu could not be impugned. There  is  also one curious feature about  these  marriages. What  exactly constitutes a proper Buddhist wedding  is  not very clear from the evidence.  The extract from the  booklet ’Boudcharya  Vidhi’ marked as Ext.100-B refers,  apart  from recitation  of the mantaras, to the husband and  wife  being made  either to wear rings or some Sindhur being applied  on the head and of tying the sacred thread.  But almost all the witnesses also mentioned that the mangal sutra is tied which is  a Hindu custom.  It also appears from the evidence  that at  the time of these marriages according to Buddhist  rites the pictures of Dr. Ambedkar and Buddha are garlanded.   One witness for the petitioner has said that Buddhism is against idol worship which really shows the extent of his ignorance. The   garlanding  of  Dr.  Ambedkar’s  photo  graph   cannot certainly  be  a  religious  part  of  the  ceremony.   Even according to the Buddhists marriage is said to be one of the ten Sanskars.  Therefore, except perhaps for the  garlanding of  the, pictures of Dr. Ambedkar and Buddha there  is  very little  difference between a wedding according  to  Buddhist rites  and a wedding according to Hindu rites.  The  mantras which  are  in  Pali or in Sanskrit are not  likely to  be understood  by the majority of the persons present.   Indeed it is doubtful whether they would recognise the language  as Pali  or Sanskrit.  As regards persons officiating  in  such marriages,  it is said that there are two Bhikus in  Nagpur, Dr.  Kausalayan and Medhankar.  A Bhiku is a sanyasi and  at feast in the Hindu society a sanyasi never officiate.-, as a priest  in  a wedding.  So any officiation by a Bhiku  in  a wedding in apparently something new which the new  Buddhists in Nagpur or Maharashtra might have adopted.  The importance given  to Dr. Ambedkar is very significant in this  context. He  was  a  great  scholar,  the  chief  architect  of   the Constitution, but also a politician.  He seem-, to have been held  in great veneration by the Scheduled  Castes  particu-

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larly  in  Maharashtra  at least by Mahars  among  them,  he himself having been born a Mahar.  That the Scheduled Castes in  general and Mahars in particular should have  been  very proud that he belonged 928 to their community is natural enough and the respect and the veneration shown to him is also natural.  But on that ground we  find it difficult to accept that any marriage  in  which his  photograph  was  garlanded or  even  a  Buddhist  Bhiku officiated should be considered to be a wedding according to Buddhist  rites.  Curiously Medhankar has not been  examined in  this  case.  What we say in this respect  applies  to  a considerable  extent to the marriages of the 6th  respondent as we I as his sister. As regards the 2nd respondent visiting the Bhiku Niwas,  the explanation  given  by  the 2nd  respondent  appears  to  be reasonable enough.  His dispensary is near the Bhiku  Niwas. He  says that he has gone there either as a medical man  or. on  social occasions.  His joining the Buddhist  Vandana  is spoken to only by one of the witnesses, Ramesh Vaidya and we are not prepared to hold on his,solitary evidence that  the, 2nd respondent was taking part in the Vandana.  We find  the 2nd respondent’s evidence on this point as more  acceptable. As  far  as  the 6th respondent is  concerned  there  is  no evidence  about his visiting the Bhiku Niwas or joining  the Buddhist  Vandana.  The evidence is only about his  marriage and  that  of his sister being performed  according  to  the Buddhist rites. This  matter has also to be looked at from another point  of view.  There is evidence in this case that persons who still continue  to  be  Hindus  marry  persons  who  have   become Buddhists and that in such cases the officiating Bhiku  asks them  to  become Buddhist on the occasion of  the  marriage. Again  this might explain the resort to the  Buddhist  rites being  followed  in these marriages even where  one  of  the parties  to  the marriage is a non-Buddhist.   There  is  no evidence  that  in  such cases the Hindu  partner  does  not profess  Hinduism thereafter.  There is also  evidence  that even  some Hindu Mahars celebrate their marriages  according to  Buddhist  rites-See  P.W.25’s  evidence  regarding   his nephew’s  marriage.  It is very difficult therefore to  rely upon  such  evidence  alone  to hold  that  either  the  2nd respondent  or the 6th respondent are Buddhists.  It  should also  be noted that the 6th respondent also denies  that  he became  a  Buddhist.   We  consider,  therefore,  that   the evidence in this case does not satisfactorily establish that either  the 2nd respondent or the 6th respondent  ceased  to profess  Hinduism,  they  having been  undoubtedly  born  as Hindus. In this connection it is necessary to remember that Hinduism is  a very broad based religion.  In fact some  people  take the view that it is not a religion at all on the ground that there  is  no  one founder and no one sacred  book  for  the Hindus.   This,  of course, is a very  narrow  view,  merely based on the comparison between Hinduism on the one side and Islam  and  Christianity on the other.  But one  knows  that Hinduism through the ages has absorbed or accommodated  many different practices, religious as well as secular, and  also different  faiths.  One of the witnesses has described  that he  considered Buddha as the 11th Avtar.  Indeed  there  are historians and sociologists who take the view that  Buddhism disappeared  from India not by any other means but by  being absorbed  into Hinduism.  Therefore, if a certain  community in a spirit of protest says that they would give up Hinduism and adopt

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                           929 Buddhism  it  is not likely to make much  change  either  in their beliefs or in their practices.  Centuries of habit and custom cannot be wiped out overnight.  While in the case  of highly educated members who have chosen the new religion the change might make a difference in their attitude and perhaps in  their  habits and customs, to the vast  majority  it  is likely to make very little difference.  Merely because in  a public  meeting Dr. Ambedkar and Mrs. Ambedkar and  a  large number of people openly got themselves converted to Buddhism it does not automatically follow that all the members of the Scheduled Castes followed them in their footsteps.  It  does not even mean that all Mahars, who seem to form the  largest element among the new Buddhists, became Buddhists.  Hinduism is  so tolerant and Hindu religious practices so varied  and eclectic that one would find it difficult to say whether one is   practising  or  professing  Hindu  religion   or   not. Especially when one is born a Hindu the fact that he goes to a Buddhist temple or a church or a durgah cannot be said  to show  that  they  are no more Hindus unless  it  is  clearly proved  that they have changed their religion from  Hinduism to  some other religion.  In Tamil nadu in Nagapatnam  there is  a  Muslim Durgah the majority of pilgrims to  which  are Hindus.   In  the same, town there is a  church  Vellankanni called  Lourdes  of the East after the famous  Lady  of  the Lourdes in France.  In Andhra Hindus have names like  Mastan Ayya or. Hussain Amma named after Muslim saints whose durgah are near their places. For  a person who has grown up in Indian society it is  very difficult  to  get  out of the coils of  the  caste  system. There  are many castes among the Scheduled  Castes.   Though all of them are tainted with untouchability, some among them claim to be higher than some others.  One knows of instances of "high caste" members of the Scheduled Castes addressing a "low  caste" member of the Scheduled Castes in the same  way as  the ordinary high caste Hindu would address a member  of the  Scheduled  Castes.  The Urdu speaking  Muslims  in  the South would rarely inter-marry with Tamil speaking  Muslims. We know that the Punjabi Muslims used to look down upon  the Bengali  Muslims.  Till recently Muslims, Hindus  and  Sikhs used  to  call themselves as Rajput Muslims,  Rajput  Sikhs, Muslim   Jats  and  Hindu  Jats.   Because  of  the   Punjab legislation preventing alienation of agricultural land  many Muslims  described  themselves as agricultural  tribes.   At least  in  the  South  of India  till  recently  there  were churches where places were separately reserved for  Schduled Caste   Christians.   To  this  day  one  sees   matrimonial advertisements which want a Vellala Christian bride or Nadar Christian  bride.   All  this  is  merely  to  indicate  the difficulty  of persons getting out of the caste customs  and the  mentality  genertad thereby.  The  monstrous  curse  of untouchability  has  got to be eradicated It has got  to  be eradicated not merely by making constitutional provisions or laws but also by eradicating it from the minds and hearts of men.   For  that it is even more important that  members  of communities  who are; untouchable should assert their  self- respect and fight for their dignity than that members of the other  commanities  should  forget  about  it.   Fortunately things  are changing in  cities and bigger towns it  can  be said  to have almost disappeared.  One rarely knows  whether the other person he meets is or is not a member 930 of  the Scheduled Castes and no one bothers about  it  these days.   The  oppression  which  we  read  of  sometimes   in newspapers  of the Scheduled Castes by the higher castes  in

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villages  are really manifestation of the  conflict  between agricultural  labour  or  the  agricultural  serfs,  as  the members of the Scheduled Castes mostly are, on the one  side and  the  land-holding class on the other.  It is  wrong  to describe  them as oppression of the Scheduled Castes by  the higher  castes.  If in these circumstances some  members  of the Scheduled Castes in their protest against the system  of untouchability  resort  to desperate measures to  erase  the indignity  of  untouchability one cannot  blame  them.   But whether  it  produces any result is  a  different  question, however  well-meaning  such efforts may be.   There  may  be other members of the community equally educated and  equally conscious  of  the  indignity  of  their  being  branded  as untouchables  who  might still feel that the way  to  remove untouchability  is not by changing one’s religion.  We  have evidence  in this case that people who claim  themselves  to have  become Buddhists have taken advantage of  scholarships and  other  facilities granted by Government to  members  of Scheduled  Castes.   Whether such concession to  members  of Scheduled Castes should also be extended to members of those castes  who  have  changed their  religion  is  a  different question.   Whether the Scheduled Castes Order  should  also describe; such persons as members of the Scheduled Castes is very  relevant to the present question.  We are  of  opinion that  the Scheduled Castes Order proceeds on a sound  basis. The attempt of persons who have changed their religion  from Hinduism  to Buddhism, who still claim the  concessions  and facilities  intended  for Hindus only shows  that  otherwise these  persons might get a vested interest in continuing  to be  members  of  the Scheduled Castes.  In  course  of  time vested interests are created in continuing to be members  of Schduled  Castes as in continuing to be members of  Backward Classes.  It is from the point of view of discouraging  that tendency  that the provision of the Scheduled  Castes  Order seems to be a proper one. We have said all this merely to show that this is not a case of black and white but a grew area where customs and  habits of  centuries along with some new ideas co-exist and  it  is difficult to say from a man’s attitude in respect of certain questions whether he is a Hindu or a Buddhist.  Religion  is essentially  a  highly personal matter and  there  the  open assertion  by a person especially an educated member of  the society  about  the religion he professes  should  be  given considerable weight over the interested testimony of  others based on stray instances.  We would, therefore, in agreement with the High Court hold that the respondents-2, 6 and 9 are not  Buddhists but continue to be members of  the  Scheduled Castes. As regards the question of withdrawal by Ranjit Meshram  the evidence  of  R.W. 2, the Returning Officer, shows  that  he knew Ranjit Meshram and  that  Ranjit  gave  the  withdrawal letter, Ext. 70.  As regards Ext.  69, of course, he is  not quite sure.  But his evidence that be knew   Ranjit  Meshram and that Ranjit Meshram himself gave the withdrawal  letter Ext.  70  stands  unrebutted.  He is not  able  to  remember clearly the circumstances under which he made the endorse- 931 ment  in  Ext. 69 that it was given by Ranjit  Meshram.   It does  not  affect his evidence regarding Ext. 70.   No  mala fides have, been imputed to him and we see no reason why  we should  not  accept his evidence. In view of  this  and  our finding  that it has not, been established that  respendents 2, 6 and 9 are not professing Hinduism it is unnecessary  to discuss   the  prayer  regarding  declaring  the   appellant elected.

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In the result the appeal is dismissed with the costs of  the 2nd respondent to be paid by the appellant. Appeal dismissed V. P. S. 932